Kitzmiller v. Dover Area School District
Trial transcript: Day 6 (October 5), AM Session, Part 2
THE COURT: Be seated, please. We're back on the record. Mr. Muise, do you have additional questions on voir dire?
MR. MUISE: We have a few more, Your Honor, and we're going to be wrapping up it in short order.
THE COURT: All right.
Q. Ma'am, based on what you testified to earlier this morning, it's clear the testimony you intend to offer this afternoon is going to be based in large part on statements made by certain intelligent design proponents, is that accurate?
A. It's based on my consultation of their writings and things about them in which they are quoted.
Q. Ma'am, do you agree with Dr. Miller's testimony that not everything a scientists says is science?
A. Scientists make lots of statements sometimes when they're speaking not as scientists, but as just people.
Q. In the testimony you intend to offer this morning and this afternoon, ma'am, how will this court know when you're referring to scientific claims made by intelligent design and phil osophi cal or theol ogi cal claims made intelligent design proponents?
A. That sounds like it would depend on the question. The question would have to specify and then I would have to specify.
Q. Isn't it true in your report you've made no effort to distinguish these sorts of claims?
A. I'm not exactly sure, I'm sorry, what you're asking me.
Q. Well, isn't it clear in your report, and I'm assuming then your subsequent testimony today, does not make clear the distinction between religious motivations of some intelligent design proponents, the religious implications of intelligent design, and intelligent design as science, isn't that correct?
A. I look at the nature of intelligent design in the intelligent design movement. That includes a number of things. It includes most basically the substance of the movement itself, the essence of what it is, but also involves motivations of the people who are carrying out this movement and the goals that they have. So I look at all of it, most basically the nature of intelligent design and the movement that's being used to carry it out.
Q. But you don't address the scientific claims of intelligent design, for example irreducible complexity or complex specified information, is that correct?
A. That's not what I was called upon to do in my report.
Q. So is it accurate to say your focus is on the philosophical and theological claims made by intelligent design proponents?
A. Yes. If I may say, in my book we do look at the scientific claim. My co-author is a scientist, so I have some source of expertise to draw from whenever I need to address that, but that's not my primary area.
Q. Again, ma'am, you're testifying as to your report, not your book, correct?
A. Right.
MR. MUISE: Your Honor, we have no further questions, and we move to exclude this witness from testifying as an expert in this case.
MR. ROTHSCHILD: Could I ask one question on redirect of voir dire?
THE COURT: You can, and then we'll hear argument on qualifications. Go ahead.
REDIRECT EXAMINATION ON QUALIFICATIONS
Q. Dr. Forrest, is it your view, your opinion, that intelligent design is at its core a philosophical and theological claim?
A. It is my view that at its core intelligent design is a religious belief.
MR. ROTHSCHILD: No further questions on voir dire, Your Honor.
THE COURT: Any recross on qualifications?
MR. MUISE: No, Your Honor.
THE COURT: All right. So you object to the expert's testimony for the purposes stated by Mr. Rothschild, and we stated and restated those purposes. So there's no need to do that at this point. I'll allow you to expand on that argument if you like.
MR. MUISE: Your Honor, this last question that he just proposed to her she said during the voir dire when I asked her if she had any expertise in religion, she said no. She has apparently tracked the nature and the history of this so-called intelligent design movement. She can't address the scientific claims of this. The issue at the heart of this case is whether or not intelligent design is science.
THE COURT: As framed by you.
MR. MUISE: Well, Your Honor, I think their claim that it's not science. She's made no efforts to address the science component of it, because she can't. She has no expertise. She has focused on the philosophical and theological claims of proponents of intelligent design.
THE COURT: Well, the problem with that is that it is an issue to be sure, but another issue, and I understand that they work hand in glove in some cases, these issues, is the religious underpinnings of, or the alleged religious underpinnings of the intelligent design movement as cast by the witness. Why isn't she competent to testify as to that?
MR. MUISE: Your Honor, again the religious underpinnings of William Dembski, who's a theologian and a philosopher in addition to a mathematician, is no more relevant than the interrelated underpinnings of Richard Dawkins to say whether or not evolution is --
THE COURT: I might agree with that, but that goes to what I said earlier, Mr. Muise, which is that you may have objections as they relate to specific portions of her testimony, and I restate, because I think it needs to be restated, that nothing that I do in terms of admitting this expert, assuming that I admit her, would prevent you from doing that. But to parse out portions of a report that may be objectionable in that way doesn't help you in terms of her admissibility generally as an expert. We're talking about two different things. So what other arguments do you want to make on that point?
MR. MUISE: Again, Your Honor, as indicated from the last question, just the interrelationship, there's no way to separate out those objectionable claims from what she's going to be testifying to. That is in part and parcel of what she's going to be opining is relying on those sorts of objectionable claims, these philosophical and theological statements of proponents. And so the fact that they're so intertwined, there's no way that this court or even us sitting here when she makes a particular claim can parse out what is the basis, the material that she's relying on to make that claim, and those materials are objectionable and undermine the reliability, and if I may just make one other - -
THE COURT: Well, the materials themselves may constitute hearsay. We've already been down that path. 703 doesn't exclude hearsay. In an effort to be fair I said the materials had to be brought in in part so that we can assure ourselves that you're given the fair opportunity to discern whether or not, and I'm fairly certain you did this beforehand, and so it's principally for my benefit to see whether or not the statements are taken out of context, which would be one way to measure that, particularly when you're parsing out, using that word again, a particular statement, and I'm perfectly willing to do that on an objection from you. But to say that this witness, who is engaged in a scholarly exercise and has produced a published work, that she can't testify generally subject to well placed objection on the history of intelligent design as it arose, I'm having difficulty seeing why she can't.
MR. MUISE: And just a couple of more points to that, Your Honor. With regard to the context, that was the point of some of my last questions, because if the context is a philosophical or a theological claim made by a proponent, that is the context that makes it irrelevant, and that's the point.
THE COURT: Do you mean as to their personal beliefs?
MR. MUISE: That's correct, Your Honor.
THE COURT: Well, and it has to be tied to the -- we're talking in the abstract. A mere statement of faith by a particular individual standing alone, not tied in some way to an analysis of the, not just an analysis but not tied to that individual's work or works, treatises, published works as they relate to intelligent design, that may be indeed objectionable. I'm not preventing that. And this report may have instances of that. But again I don't think it disqualifies the witness as an expert.
MR. MUISE: Just two last -- well, it's related, but one last point I guess, Your Honor, is that as she testified there's no evidence that anyone in the school board knew anything about this Wedge Document which forms the foundation of her opinion, nor that any person on the Dover area school district was aware of or operating under the guidance of this conspiratorial intelligent design movement that's somewhere operating out there.
THE COURT: But that's weight and relevance. That's not expert qualifications, is it?
MR. MUISE: Well, again, Your Honor, I think it's more than just the qualifications. There's a reliability question that's associated with this 703 --
THE COURT: No, the purpose then would be effect, I think, from the plaintiff's standpoint. Having admitted the testimony, you of course can argue that for the effect prong perhaps, for example, and not the purpose prong, and the failure to tie the matters testified to to the individual school board members makes the testimony irrelevant and that it shouldn't be considered by the court. But we're not there, and we're not in your case and I don't think that that goes to qualifications. So you're morphing your qualifications argument into a relevancy argument, and I don't think that's appropriate at this point.
MR. MUISE: Thank you. No further argument, Your Honor.
THE COURT: I'm going to admit the expert then, again subject to timely objections by the defense, for the purpose stated by Mr. Rothschild, which is an expert on methodological naturalism and the history and nature of the intelligent design movement, and Mr. Rothschild, you may proceed.
DIRECT EXAMINATION ON EXPERT TESTIMONY
Q. Good morning again, Dr. Forrest?
A. Good morning, again.
Q. Do you have an opinion about whether intelligent design is a form of creationism?
A. Yes.
Q. And what is that opinion?
A. My opinion is that it is creationism.
Q. The district in this case has argued that creationism is limited to a literal interpretation of the account of Genesis from the Old Testament of the Bible. Do you agree that that's a proper definition of creationism?
A. No, I don't agree.
Q. What do creationists themselves say on that subject?
A. Creationists themselves recognize variations among themselves. They recognize the young earth position. They recognize the old earth position. This is quite well known among creationists themselves.
Q. Do you have an opinion about whether intelligent design is religious in nature?
A. Yes.
Q. And what is that opinion?
A. That it is essentially religious.
Q. On what do you base your opinion that intelligent design is a form of creationism?
A. On the statements by the movement's own leaders, they have at times referred to it that way.
Q. Anything else?
A. Yes. Their rejection of evolution in favor of a supernatural intervention in the process of nature and in favor of special creation of life forms.
Q. Has your review of the history of the writing of Of Pandas and People confirmed your conclusion that intelligent design is creationism?
A. Yes.
Q. On what do you base your opinion that intelligent design is a religious proposition?
A. On the statements of its leaders. They have so defined it.
Q. We're going to go into those statements in some detail, but has Phillip Johnson made statements to that effect?
A. Yes, he has.
Q. Matt, could you pull up Exhibit 328? Do you recognize this document?
A. Yes.
Q. What is it?
A. It is entitled "Starting a Conversation About Evolution." It is a review of a book by Dell Ratzsch. This is written by Phillip Johnson.
Q. And Dr. Forrest, have you in preparation for your testimony highlighted passages of some of the documents we're going to use as exhibits today?
A. Yes, I have.
Q. Did you do that for this exhibit?
A. Yes.
Q. Matt, could you go to the highlighted statement in this exhibit? And Dr. Forrest, could you read that statement into the record, using quotes to indicate when you're quoting from the document?
A. Yes.
MR. MUISE: We object to the statement as hearsay.
THE COURT: Well, you're going to have to do better than that.
MR. MUISE: Again, Your Honor, it goes to the content. This is not a claim made by, a scientific claim. It's at best a philosophical theological claim that's made by somebody that she purports to be an intelligent design proponent, and as she said in direct testimony Phillip Johnson is a lawyer. He's not a scientist.
THE COURT: We'll have to take it in the context of the entire passage and presume that, meaning I have to see it on the screen, you're going to have to give me the exhibit.
MR. ROTHSCHILD: Your Honor, it's exhibit --
THE COURT: Why don't you --
MR. ROTHSCHILD: - - 328.
THE COURT: That's helpful to me.
MR. ROTHSCHILD: Can I address Mr. Muise's point?
THE COURT: Let me read it first.
MR. ROTHSCHILD: Sure.
THE COURT: What is this drawn from?
MR. ROTHSCHILD: This is an article as Dr. Forrest described written by Phillip Johnson.
THE COURT: Let me see the title page of that again. (Brief pause.)
THE COURT: The objection is overruled.
Q. Could you read that passage into the record, please?
A. Yes. "My colleagues and I speak of theistic realism, or sometimes mere creation, as the defining concept of our movement. This means that we affirm that God is objectively real as creator, and that the reality of God is tangibly recorded in evidence accessible to science, particularly in biology."
Q. And based on your reading of this article, what is the movement that Mr. Johnson was referring to?
A. He's referring to the intelligent design movement.
Q. This is one example of intelligent design movement leaders' own statements indicating the religious nature of the proposition?
A. Yes.
Q. In preparing your expert report and preparing to testify today did you examine prior court cases relating to the teaching of evolution?
A. Yes.
Q. And why did you do that?
A. Because it gives a good understanding of the history of this issue and shows the religious objections to the teaching of evolution in those cases.
Q. Was there any opinion that was particularly important to your opinion?
A. Yes.
Q. And what was that?
A. That was the Edwards vs. Aguillard, 1987 United States Supreme Court reading.
MR. MUISE: Your Honor, we're going to object to any testimony related to any court cases or prior decisions. She's not an attorney in this case. There's only one legal expert in this courtroom, and it's the judge, and it's not this witness.
THE COURT: Of course that remains to be seen. What do you have to say about that?
MR. ROTHSCHILD: Your Honor, she is not going to discuss this court case. She's going to discuss it as a historical fact that's important to the intelligent design movement, including, and this is my -- we're going to go to this in the next couple of questions, an affidavit presented in that case in support of creation science by Dean Kenyon, the author of Pandas.
THE COURT: Well, to the extent that Mr. Muise interposes a protective objection as it may relate to a legal interpretation of the case you'll not be able to go there, and I'll sustain the objection on that basis. The questions up to this point with respect to the existence of the case, the naming of the case, are not objectionable, but I understand I think the basis of your objection is that she can't legally interpret the case. I'll hear another objection, I'll allow you a continuing objection in that vein, but we haven't gotten to that point yet. You may proceed.
Q. What court wrote the opinion in Edwards that you have read?
A. The United States Supreme Court.
Q. And do you know when the court issued its opinion?
A. June 19th, 1987.
Q. I'm not asking you to interpret it, but what's your understanding of what the court ruled in that case?
MR. MUISE: Objection, Your Honor.
MR. ROTHSCHILD: Your Honor, this is just background.
THE COURT: No, I'll sustain that objection. I think that's problematic, and I think furthermore the court is capable of understanding that case. So it's probably a needless question anyway. So let's move on.
Q. What is the Edwards decision important to the opinions you're going to give today?
A. Because one of the expert witnesses was Dr. Dean H. Kenyon, who is a co-author of Pandas.
Q. And did Dr. Kenyon submit an affidavit in support of the teaching of creation science in that case?
A. Yes, he did, in 1986.
Q. And have you reviewed that affidavit?
A. I have.
Q. Matt, could you call up Exhibit 418? I apologize, the text is a little hard to read, but do you recognize this document?
A. Yes.
Q. What is it?
A. That's Dr. Kenyon's affidavit.
Q. And have you highlighted portions of this document that are important to your opinion about intelligent design?
A. Yes.
MR. ROTHSCHILD: Matt, could you go to the first, could you actually highlight the heading so we can see clearly that that is an affidavit? I think you need to go down a little -- there we go.
MR. MUISE: We object on the basis of hearsay again for any testimony relating to this affidavit, this out of court statement issued by Mr. Kenyon.
THE COURT: Again you're going to have to do better than a basic hearsay objection, and it's also an affidavit that appears to have been part of the record papers in that case. Now, is it unreliable? Do you have any reason to doubt its voracity?
MR. MUISE: Well, Your Honor, again with regard to it's an affidavit given in a court case that's not addressing the issue of intelligent design. Again she's relying on these statements to arrive at an opinion that's not substantiated by, you know, by weaving this web of these assorted statements throughout the course of the testimony. We're going to continue to object to any of the statements that keep coming up, Your Honor, and I'll ask for a standing objection on that, but --
THE COURT: Well, I don't think a standing objection is going to work for you because you may have particular things you want to say about it. You have to do what you have to do. I'll overrule the objection.
MR. ROTHSCHILD: And, Your Honor, we re not introducing this for the truth of the matter asserted. We're introducing it for these are Dr. Kenyon s statement, and I'd just like to add for the record the first exhibit that received this kind of objection, Exhibit 328, is already in evidence. It came in through Dr. Pennock, and I'm not sure why Dr. Forrest is being treated differently than other expert witnesses in this case. Could you go to the first highlighted passage, Matt?
Q. Could you read that into the record, Dr. Forrest?
A. Yes. "Definitions of creation science and evolution. Creation science means origin through abrupt appearance in complex forms, and includes biological creation, biochemical creation or chemical creation, and cosmic creation."
Q. Why is that statement in Dr. Kenyon's affidavit important to your opinion about intelligent design?
A. That statement is important because it reflects the definition in Pandas.
Q. And when you say the definition in Pandas what is the term that's defined the Pandas?
A. The term in Pandas is intelligent design. It's pretty much the same definition here that he's giving for creation science.
Q. And we're going to look at some of that language in Pandas later, but why don't we go on to the next highlighted passage. Why don't you go ahead and read that.
A. "Creation science does not include as essential parts the concept of catastrophism, a worldwide flood, a recent inception of the earth or life from nothingness, ex nihilo, the concept of time, or any concepts from Genesis or other religious texts."
Q. Why is that important to your opinion?
A. That's important because it recognizes that there are different types of creationism, that it's broader than just young earth creationism.
Q. And I think we have one more passage highlighted, Matt.
A. "Sole alternative to scientific explanation, it is not only my professional opinion, but that of many leading evolutionists scientists at present and in the past, that creati on science and evolution are the sole scientific alternative, scientific explanation, although each includes a variety of approaches. Either plants and animals evolved from one or more initial living form, biological evolution, or they were created, biological creation."
Q. Why is that important?
A. That's important because he's setting out what is called the dual model, or the two model view of evolution and creation, which means that he considers these the only two alternatives.
Q. And why is that significant to the issue of intelligent design?
A. That's significant here because in 1986 when Dr. Kenyon wrote this he was also working on Pandas the same year, and the two model approach means that if the idea of evolution is undermined, that leaves creation science by default. It also indicates that since he was working Pandas and that book speaks as an intelligent design theorist, he doesn't see any significant distinction between the two, between creation science and intelligent design.
Q. I'd like to talk now about the writing of the book Of Pandas and People. When was the book first published?
A. 1989.
Q. And was there a second published version?
A. 1993.
Q. Have you prepared a timeline to assist your testimony today on the issue of the creation of Pandas?
A. Yes.
Q. Matt, could you pull up the timeline and place the Edwards decision and Mr. Kenyon's affidavit, Dr. Kenyon's affidavit on the timeline, and then could you also put up the two published versions of Pandas in 1989 and in 1993? What organization created Of Pandas and People?
A. The book was created by The Foundation for Thought and Ethics.
Q. Who runs that organization?
A. The founder and president is Mr. John Buell.
Q. And what do you know about him?
A. Mr. Buell at one time worked for Campus Crusade for Christ. Then he worked for Probe Ministries, and I believe he left Probe in order to found, to set up The Foundation for Thought and Ethics.
Q. And what is Probe ministries?
A. Probe Ministries a campus youth ministry. It operates on university campuses.
Q. Do you have any knowledge of whether Mr. Buell is a scientist?
A. He's not a scientist.
Q. Have you reviewed public filings by the foundation which demonstrate their stated mission or purpose?
A. Yes.
Q. Matt, could you pull up Exhibit P-12? Do you recognize this document?
A. Yes. It's the articles of incorporation for The Foundation for Thought and Ethics.
Q. And Matt, could you highlight the dates on that document? And that indicates that the articles of incorporation were filed in 1980 and a follow-up report in 1993?
A. Correct.
Q. Does this, do these articles of incorporation contain a mission statement by, or a description of what the FTE does?
A. Yes, there is a description.
Q. Matt, could you go to the highlighted passage? And Dr. Forrest, could you read the highlighted text under Articles?
A. Yes, this is Article 5, "The purposes for which the corporation is formed are, 1) the primary purpose is both religious and educational, which includes, but is not limited to, proclaiming, publishing, preaching, teaching, promoting, broadcasting, disseminating, and otherwise making known the Christian gospel and understanding of the Bible and the light it sheds on the academic and social issues of our day."
Q. Do you consider that to be announcing a religious agenda?
A. Yes, I do.
Q. Have you seen other documents prepared by The Foundation for Thought and Ethics that confirm that in fact that organization has a primarily religious agenda?
A. Yes, I have.
Q. Matt, could you pull up Exhibit P-633. Do you recognize this document?
A. Yes.
Q. And what is it?
A. It is a 1983 publication called The Foundation Rationale.
Q. And who publishes this document?
A. This is published by The Foundation for Thought and Ethics. The copyright is below the title.
Q. And have you highlighted portions of this document - -
A. Yes.
Q. -- that indicate the religious agenda?
A. Yes.
Q. And Matt, could you go to the first highlighted portion of the document?
MR. MUISE: Your Honor, we object on the basis of hearsay.
THE COURT: Are you objecting to the document, reference to the document generally, or to individual parts of the document?
MR. MUISE: Well, I understand she's going to start testifying about individual parts of the document as to Mr. Rothschild's indication about highlighting certain sections.
THE COURT: Before we go further let's go back to the first page if I could ask.
THE COURT: All right, that objection is overruled. You can proceed.
Q. Could you go to the first highlighted text, Matt, and could you read this text into the record and explain why it's important?
A. Yes.
MR. MUISE: Objection to the reading of this portion of the text into the record on the basis of hearsay.
MR. ROTHSCHILD: I'm not offering it for the truth, Your Honor.
THE COURT: And the author of this is?
MR. ROTHSCHILD: If you can go to the second page, Matt? Charles Thaxton and John Buell, the president and academic editor of the foundation including during the times Pandas was being developed.
THE COURT: Do you have any additional objection?
MR. MUISE: Your Honor, this is a document that self-authenticates. I mean, it's fine that he can read that off the document, but there's no way to authenticate that this is in fact that document.
THE COURT: Well, it doesn't self authenticate, but that's not the issue. You know, in a 703 analysis it's part of an expert report. I think the question is whether you don't think it's authentic, not whether it self-authenticates, because we're not in a strictly, or in a strict hearsay inquiry. We've been down this road before, hearsay is admissible. So the self-authenticating part is not it. Now, if you tell me that you don't think this is real, if you tell you think it was altered, if you tell me that there's no way for you to know, I might consider that. But you had the report, you've had the ability to check, presumably you've had the ability to access FTE documents. So if it's something other than it doesn't self-authenticate then I'm going to overrule the objection.
MR. MUISE: Well, that was in response to just showing his signature. My objection is the hearsay objection that we stated at the front, at the beginning of this testimony. It is the context. This is a philosophical, a theological claim, not a scientific claim.
THE COURT: Well, it is a newsletter to close this loop, but it's a newsletter that appears to the court to have been published by The Foundation For Thought and Ethics by Mr. Buell. The court knows what Mr. Buell's position is, and Mr. Thaxton. They are, it is not a matter of controversy that they are the publishers of the book Of Pandas and People. It is a work that is roughly contemporaneous with I think the first publishing or at or around the time of the publishing of the book, or at least if predates it, it doesn't predate it by much, I'm not certain, so I'll overrule the objection.
MR. ROTHSCHILD: Your Honor, one more thing. Mr. Muise is objecting because these are philosophical and theological statements, and I think most of what Dr. Forrest is going to testify about surely are, and it is the plaintiff's position that intelligent design is at its core a philosophical, theological, religious statement. So that, I mean, that's what she's here to testify about, so it's not going to be surprising if those kinds of statements are, you know, the core of Dr. Forrest's testimony today.
THE COURT: Well, if you said that to get Mr. Muise to stop making continued objections, you're probably going to fail. So let's move on.
Q. Dr. Forrest, if you could read that and explainwhy it's significant to the issue of the foundation mission or agenda.
A. Yes. "Many of the same Christian parents, however, are not concerned about the teaching of evolution in public schools. Falling SAT scores and increasing drug abuse, violence, abortion, and homosexual activity among teens are the concerns of these parents. Why the fuss about creation being taught in public schools anyway they ask. As we shall show, there is a fine line of reasoning which usually lies hidden when either the subject of origins or morality is discussed, but which actually ties the two concerns together. Once this reasoning is understood it becomes evident that not only does the exclusive teaching of evolution encourage our children's rejection of Judeo-Christian morality, but it also prepares young minds for the reception of religious views which these same parents would find unacceptable."
Q. Before you explain the significance, you did read "it's a fine line of reasoning." It didn't say "a fine line," just "a line," so it's "a line of reasoning," so --
A. Did I insert the word "fine?"
Q. You did?
A. I'm sorry. "There is a line of reasoning."
Q. If you could explain why is this important to your opinion about the FTE's agenda?
A. This shows that FTE's objection to the teaching of evolution is it undermines moral values and the religious beliefs of young students.
Q. Is that a common theme in the creationist movement?
A. That's found throughout the creationist movement.
Q. Matt, I think there's another passage that Dr. Forrest asked you to highlight.
A. "To understand how this can happen we must recognize that there are two basic views of world and man, theism and naturalism. These are philosophical categories, not religious. They can also be called metaphysical positions, world views, or idea systems. Philosopher or not, we all have such a view. Theism and naturalism are mutually exclusive systems of thought as can be seen from a single distinction. Theism affirms a fundamental creatorcreature distinction, whereas naturalism denies this distinction and defines total reality in terms of this world."
Q. Why is that important?
A. That's very important because one of the most common themes in creationism is the rejection of naturalism to juxtapose it as the opposite of theism, and for that reason to see evolution as inherently atheistic.
Q. If you could highlight another passage, Matt? Could you read this into the record, please?
A. "That's why Christians, in fact all theists, must insist that whenever origins are discussed, public schools allow the teaching of the evidence for creation alongside instruction in the naturalistic concept of evolution. If the scientific rationale for both creation and evolution were taught there would be an equality demanded by the symmetry of the two metaphysical views, theism and naturalism. If both are not taught, it is not just the subject of origin that is affected. The whole of naturalistic thought is given privileged status by the state, with the de facto result that young minds are prepared to reject theistic approaches to morality and religion. At the same time they are prepared to receive both moral relativism and the various naturalistic religions such as unity, Buddhism, Scientology, and religious humanism."
Q. Do you have an understanding based on this passage why the authors are advocating the teaching of creationism?
MR. MUISE: Objection. That calls for speculation, Your Honor.
THE COURT: I'll sustain the objection.
Q. We'll move on to the next exhibit. Matt, could you pull up Exhibit? And do you recognize this document?
A. Yes.
Q. What is it?
A. It's a 1995 fund raising letter written by Mr. Buell.
Q. And how did this document come into your possession?
A. This is one of the subpoenaed document that FTE provided to the legal team, and the legal team provided it to me.
Q. And have you highlighted portions of this letter that are important to your opinion?
A. I have.
Q. Matt, could you go to the first highlighted passage?
MR. MUISE: Your Honor, we object on the basis of hearsay.
THE COURT: Overruled.
Q. This indicates that this is a discussion of the book Pandas?
A. Yes. Shall I read that?
Q. I'll read that into the record. "Production of supplemental textbook for biology is already complete. The teachers are now using it in all 50 states. This book Of Pandas and People is favorably influencing the way origins is taught in thousands of public school classrooms." This is what Mr. Buell is conveying to his fund raisers?
A. Yes. He's talking about the book Of Pandas and People.
Q. Matt, could you go to the next highlighted passage? And could you read that into the record? Go on to the next page where this continues.
A. "Our commitment is to see the monopoly of naturalistic curriculum in the schools broken. Presently, school curriculum reflects a deep hostility to traditional Christian views and values and indoctrinates students to this mindset through subtle but persuasive arguments. This is not merely a war over ideas, but over young people and how their lives will be shaped. The current deplorable condition of our schools results in large part from denying the dignity of man created in God's image. Even junior high students recognize that if there is no creator, as textbooks teach, then there is no law giver to whom they must answer, and therefore no need of a moral lifestyle, much less a respect for the life of their fellow man. The message of the foundation is that this is simply unacceptable.
Q. What do you understand Mr. Buell to be conveying?
MR. MUISE: Objection, calls for speculation.
THE COURT: Doesn't the document speak for itself?
MR. ROTHSCHILD: I mean, I think based on her overall review of the documents and the history of the writing of Pandas I think Dr. Forrest can give some helpful conclusions about that. I think the document does speak for itself verywell.
THE COURT: Well, on that basis I'll sustain the objection.
MR. ROTHSCHILD: Okay.
Q. You mentioned that Dean Kenyon was one of the authors of Pandas?
A. Yes.
Q. And he was the expert in the Edwards case?
A. Yes.
Q. Tell us what do you know about Dean Kenyon?
A. Dr. Kenyon is a biophysicist who taught at San Francisco State University. He's one of the co-authors of Pandas. He's also a fellow of the Center for Science and Culture. He's a member of the intelligent design movement. He also wrote sections of young earth creationists books in the 1970's.
Q. And can you identify any of those books for us?
A. One of those books was by Henry Morris and Gary Parker. I believe the title is What Is Creation Science?
Q. Go ahead.
A. Another of those books that he wrote a section for was by the young earth creationist
Q. And who is Henry Morris?
A. Henry Morris is affiliated with the Institute for Creation Research. He's widely known as the leading, the leader of the young earth creationist contingent in the United States.
Q. Who is the other author, named author of Pandas?
Q. What do you know about him?
A. Percival Davis is the co-author of two earlier books, both taking the young earth creationist view. He was the co-author in 1967 with Wayne Frair of The Case for Creation. He was the co-author of the later edition of that book with Mr. Frair, 1983, called A Case For Creation.
Q. Matt, could you pull up Exhibit . Is that the cover page of A Case For Creation?
A. Yes, that's the 1983 edition.
Q. And it's making a case for young earth creation?
A. Yes. Near the end of the book they side with the young earth view.
Q. Did Mr. Davis ever renounce his support for young earth creationism before he became involved with or wrote Pandas?
A. Mr. Davis?
Q. Yes.
A. Not that I'm aware of, no.
Q. Has he ever to your knowledge renounced his support for young earth creationism?
A. I'm not aware that he has, no.
Q. Who else has been involved with the creation of Pandas? You mentioned Mr. Buell, Mr. Davis, Mr. Kenyon.
A. One of the other people involved was a lady named Nancy Pearcey. I believe she was one of the contributing editors to Pandas.
Q. And what do you know about her?
A. She is a young earth creationist. She's also a long time member of the intelligent design movement. She's a fellow of the Center for Science and Culture.
Q. And has she been involved with any other publications that you're aware of?
A. Yes.
Q. And what is that?
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A. The Bible Science Newsletter.
Q. And Matt, if you could pull up Exhibit 634? Is this an example of the Journal of the Bible Newsletter that Dr. Pearcey was the editor of?
A. That's the May 1989 edition.
Q. And Matt, could you highlight the section to the right that says "dedicated to"?
MR. MUISE: Your Honor, we object on the basis of hearsay.
THE COURT: Do you want to expand on your objection other than hearsay?
MR. MUISE: Again, Your Honor, it goes to -- you've got a Bible science newsletter. There's, I mean the context for this does not fit into what, you know, they're trying to claim that this isn't science. Again they're relying on phil osophi cal and theol ogi cal claims. This is specifically from a Bible science newsletter.
MR. ROTHSCHILD: Your Honor, what we're trying to demonstrate is that the book that is in the Dover school Of Pandas and People is a creationist book, and we have various forms of evidence, including that the authors and other editors involved with the creation of that book are clear and explicit creationists.
THE COURT: Is the author of this newsletter one and the same with a co-author?
MR. ROTHSCHILD: Nancy Pearcey is, and I think Dr. Forrest will testify, was involved with the creation of Pandas. She's not listed as a named author, but is a contributing editor, a reviewer of the book, and - -
MR. MUISE: And again, Your Honor, this is going to, you're talking about a person's private religious beliefs they're putting in a Bible of science newsletter.
THE COURT: We'll see whether it is. I understand that objection. Your general objection to the document is overruled, but you can interpose more clinical objections as we get into the parts of the newsletter other than the highlighted part, which is where we are now. So the objection to the newsletter generally is overruled. The objection to this highlighted passage is overruled.
Q. And could you read the highlighted passage?
A. Yes. "Dedicated to special creation, literal natural Bible interpretation, divine design and purpose in nature, a young earth, a universal Noachian flood, Christ as God and man, our saviour, Christ centered scientific research, the inerrancy of scripture.
Q. Is this a newsletter devoted to making the case for young earth creationism?
A. Yes, it is.
Q. And, Your Honor, just to clarify one point on the record, if I could approach the witness?
THE COURT: You may.
Q. Dr. Forrest, I'm handing you what we marked as P-li, which is the 1993 version of Of Pandas and People, and I'm turning your attention to the page little Roman numeral III, which includes acknowledgments, and is Nancy Pearcey mentioned on that page?
A. Yes.
Q. And what is she mentioned as having done?
A. Under editors and contributors she is mentioned as the person who contributed the overview chapter.
Q. Thank you. Do you have an opinion about whether the book Of Pandas and People is a creationist book?
A. Yes.
Q. And what is that opinion?
A. It is a creationist book.
Q. And why do you say that?
A. First, the inspection of the content of the 1993 edition contains references to a creator. There is a reference to a master intellect. There is a reference to an intelligent designer who shapes living forms out of clay for example, and other such things. You have the usual creationist's criticisms of evolutionary theory. In addition to the content of the book itself the earlier drafts of Pandas are written in the language of creationism using that term.
Q. Did you in fact review drafts of Pandas?
A. Yes.
Q. And how did you, how did those come into your possession so you could review them?
A. Those were among the materials that FTE supplied under subpoena to the legal team, and the legal team provided them to me.
Q. I'm going to ask you now to look at several documents and ask you to confirm whether these were in fact drafts of Pandas that you reviewed in order to prepare your supplemental report and your testimony today. Matt, could you start by pulling up Exhibit P-563? Do you recognize this document?
A. Yes.
Q. What is it?
A. That is the table of contents for a 1983 document, a draft entitled Creation Biology Textbook Supplements.
Q. And you said it's a 1983 draft. What did you do to determine that?
A. That year is written by hand at the top of one of the pages, and it's also in the header line in later pages of the book, apparently the header line put there by the word processor.
MR. MUISE: I'm going to object based on the hearsay.
THE COURT: Objecting to --
MR. MUISE: This document in particular, she's referring to some handwritten components of this particular document as well.
THE COURT: That's not a hearsay objection, is it?
MR. MUISE: If you have writing on the document, Your Honor, that's hearsay upon hearsay.
THE COURT: It doesn't go to the truth. She's saying there's writing on the document.
MR. MUISE: I believe she was going to testify that's how she determined the apparent age of this particular document. So she obviously had to rely on the truth of that.
MR. ROTHSCHILD: Your Honor, she relied on both the handwriting and what I think she is describing something in typewriting. Those are the only date markings on the document. That's how she was able to make a judgment about whether that is in fact the date. It's not essential to our proof, Your Honor, but I don't think there's anything --
THE COURT: I think it goes to weight. I'll overrule the objection.
Q. Matt, could you pull up Exhibit P-560. And this is, as many of these documents has what looks like an envelope page or a folder page on it, but if you could go to the next page, Matt? Do you recognize this document?
A. Yes, this document is a later draft entitled Biology and Creation by Dean H. Kenyon, P. William Davis, who was Percival Davis. It's copyrighted 1986 by The Foundation for Thought and Ethics.
MR. MUISE: Again, Your Honor, we'd object to the admission or use of this document in testimony on the basis of hearsay.
THE COURT: Where did this come from, Mr. Rothschild?
MR. ROTHSCHILD: We served a subpoena on The Foundation for Thought and Ethics, and the documents were produced in response to that subpoena. A number of these drafts were shown to Mr. Buell, who confirmed that they are in fact drafts of what became Pandas. We also have other evidence that demonstrates that that is the case, and that's how Dr. Forrest received it.
THE COURT: Specifically on the point of whether or not Buell disavowed any of this writing, do you have anything to say about that?
MR. MUISE: I'm not aware of him disavowing the writing. I'm not sure whose signature is on the, "Sincerely Yours," whose hand this letter is actually from.
THE COURT: Was Mr. Buell specifically deposed on these matters?
MR. ROTHSCHILD: He was, Your Honor.
THE COURT: Unless you have some basis to tell me that he disavowed what's on here or that this is not the document as it was turned over in discovery, then I would be inclined to overrule the objection.
MR. MUISE: It still doesn't affect the hearsay objection, Your Honor, whether he acknowledges it's the document or not, and I understand you've been overruling the objections to hearsay, but I'm making an objection for the record we believe this document - -
THE COURT: Well, there's a reliability aspect that I'm considering. I think it is technically hearsay. The hearsay objection more doesn't help me under 703. I think the purpose of this type of torturous, albeit necessary, analysis is to give you the opportunity to do exactly what we're doing. And so on that basis I'll overrule the objection. You may proceed.
Q. I think you described that document as another one of the draft documents you reviewed?
A. Yes.
Q. Could you pull up P-1, Matt? Do you recognize this document?
A. Yes. This one is entitled Biology and Origins, again by Dean H. Kenyon, P. William Davis, who was Percival Davis, copyright 1987, by The Foundation for Thought and Ethics. This is another draft.
Q. Matt, could you pull up P-562?
A. This is a cover page I believe.
Q. Why don't we go to the next page, Matt. Do you recognize this document based on the second page of the exhibit?
A. Yes, this is a draft entitled Of Pandas and People: The Central Questions of Biological Origins, by Dean H. Kenyon, P. William Davis, copyright 1987, Foundation for Thought and Ethics.
Q. Another draft you reviewed?
A. Another draft.
Q. And Matt, could you pull up P-562? Again I think this looks like an envelope page. If you could go to the next page? Do you recognize this document?
A. Yes. This is another draft, Of Pandas and People: The Central Questions of Biological Origins, Dean H. Kenyon, P. William Davis as authors. Copyright 1987, Foundation for Thought and Ethics.
Q. And one more draft document, if you could pull up P-565? Do you recognize this document?
A. Yes. This is a document entitled Introduction to Summary Chapter. It appears to be a summary of the chapters of Pandas.
MR. MUISE: Again, Your Honor, I'm going to object to this document based on the hearsay.
THE COURT: Overruled.
Q. And was this another draft you reviewed?
A. Yes, I have this to review.
Q. Were you able to place a date on the draft?
A. As nearly as I could figure this must have been produced around 1983 judging by Mr. Buell's comments in his deposition.
Q. You read Mr. Buell's deposition on the subjects of these drafts?
A. Yes.
Q. Three of the documents that we looked at, Biology and Origins and two drafts of Of Pandas and People have the copyright date 1987 on them. Were you able to by examining the documents determine when in 1987 they would have been created?
A. Yes, there was some indication.
Q. And what was that indication and what did it tell you?
A. There were two 1987 drafts in which in the introduction to teachers the June 19th, 1987 Edwards decision was referred to in a footnote. In an earlier draft in that introduction that footnote is missing. There's no reference to Edwards, indicating that that was done before Edwards. The other two 1987 drafts were done after the Edwards decision.
Q. And is it correct that it's Biology and Origins that doesn't have the reference to Edwards, and the two Pandas drafts titled Pandas - -
A. Yes, I believe that's correct.
A. Yes.
Q. Matt, could you go back to the timeline? And could you place Biology and Creation, Biology and Origins, and the two Pandas drafts on the timeline? Thank you. Did you compare the drafts of Pandas to the published versions?
A. Yes, I did.
Q. And did your review of the drafts of Pandas indicate whether it had originally been written as a creationist book?
A. Yes, my review of the draft shows that it was written as a creationist book.
Q. And what caused you to come to that conclusion?
A. Well, the earlier drafts are all stated in the language of creationism. The word is used in various cognates as that term are used throughout.
Q. Can you give us a specific example of where that occurred?
A. Specific example?
Q. Specific example of the use of creationism in the early drafts.
A. Yes, it's used in a definition.
Q. Okay. And have you highlighted text in each of the drafts as well as the published versions which illustrate this point?
A. Yes.
Q. Matt, could you pull up the 1986 Biology and Creation, P-560, and go to page ? And is this the text you're referring to as the definition?
A. Yes. That's it.
Q. And could you read what you're referring to as the definition in the draft Biology and Creation?
A. Yes, this is a definition of creation. "Creation means that the various forms of life began abruptly through the agency of an intelligent creator with their distinctive features already intact. Fish with fins and scales, birds with feathers, beaks, and wings, etc."
Q. The proposition stated there, is there a term for that?
A. Yes, there's a term for this. Abrupt appearance, or special creation.
Q. Matt, could you now pull up Biology and Origins, P-1? And including the highlighted text on page 213, and I'm not going to ask you, you'd have to do a lot of reading, I won't ask you to do this, is this the same definition we just saw in Biology and Creation, creation means various forms of life began abruptly?
A. Yes. That's the same.
Q. Matt, could you now go to P-562, which is one of the draft titles of Of Pandas and People and go to pages 2-14 through 15 where the definitions are depicted? And is it the case that in this draft titled Pandas we still have this definition, creation means that various forms of life began abruptly?
A. Yes.
Q. Could you go, Matt, to P-652? And this is another draft of Pandas with copyright 1987?
A. Yes.
Q. And Matt, could you pull up the definition and the highlighted text there? That's changed now, hasn't it?
A. Yes, there is a change.
Q. Could you read the text of this definition section?
A. "Intelligent design means that various forms of life began abruptly through an intelligent agency, with their distinctive features already intact. Fish with fins and scales, birds with feathers, beaks, wings, etc."
Q. And Matt, could you pull up P-6? This is the first published version of Pandas?
A. Yes.
Q. And could you go to page 99 through 100, Matt? The definition we saw in that last draft of Pandas made it into the published version in 1989?
A. Yes, this is the published version.
Q. "Intelligent design means that various forms of life began abruptly through an intelligent agency with their distinctive features already intact. Fish with fins and scales, birds with feathers, beaks, and wings, etc." And then if you could pull up P-1l, and go to page 99? Same definition as used there for intelligent design?
A. Yes, and this is the 1993 definition of Pandas.
Q. And notwithstanding the substitution of a few words, is that still a declaration of the proposition of special creation?
A. Yes. It's a definition in terms of abrupt appearance.
Q. And is that special creation?
A. Yes, special creation.
Q. And based on your examination, is what occurred here is that the same definition was, used only substituting words intelligent design and intelligent agency for creation and intelligent creation?
A. Yes, that substitution was made.
Q. Matt, could you pull up the slide we have to depict that?
Q. And we couldn't get all the versions up there, but we have Biology and Creation, Biology and Origins, and the first of the two Pandas drafts, and then the final published version as being used in Dover, and the only substitution is intelligent design for creation and intelligent agency for intelligent creator?
A. Yes, that's correct.
Q. I'd like to go back to the timeline and lust review what you've observed here. We have this 1986 Biology and Creation draft, and that uses the definition creation equals life began abruptly?
A. Yes.
Q. And that same definition is used in Biology and Origins in 1987?
A. Correct.
Q. And then you have the Edwards decision, and that was the case which ruled that creation science is unconstitutional?
A. Correct.
Q. And the court in that case considered Dean Kenyon's affidavit in which he defined creation as being abrupt appearance?
A. That's correct.
MR. MUISE: Your Honor, I'm kind of slow on the take obviously, but the claim that creation science holding in Edwards, I'm going to object based on the prior objection.
THE COURT: We'll sustain the objection. Again the court understands what that case said. That's not a necessary part of this analysis in any event. The objection is sustained.
Q. And Dr. Kenyon in that affidavit also said creation science and evolution are the only two possible alternatives?
A. Right. The only two alternatives.
Q. And then after the Edwards decision we have one of these drafts of Pandas still define creation as life began abruptly?
A. Yes.
Q. But by the second draft it switched to intelligent design equals life began abruptly?
A. Correct.
Q. That continues into the two published versions?
A. That's right.
Q. Was the substitution of intelligent design for creation in the definitions section the only incident where intelligent design was substituted for creation from the drafts to what was ultimately published?
A. No. That substitution was made throughout.
Q. Have you prepared an exhibit to demonstrate this point?
A. Yes.
Q. Matt, could you pull up the first slide of the exhibit? And I'm going to ask you what this depicts, but first could you explain how this graph was created?
A. This graph was created based on a word count of the word, a count of the number of times the word "creation" was used, the number of times the word "design" was used. The counts were conducted on ASCII files on the raw text of the draft.
Q. Did you do this yourself or did you ask somebody to do it for you?
A. The NCSC staff did the word counts and created the chart.
Q. Can you tell us, did you do anything to confirm the accuracy of their work?
A. Yes. I recreated the word counts on a couple of the drafts myself and got exactly the same results, the same counts.
Q. Can you describe for us what this graph depicts?
A. The graph depicts the number of times these word were used in the various drafts. For example, on the left-hand side you can see the in Creation Biology, 1983, the term "creation" was used right about 150 times. The word "design" was used about 50 times, and so the red line marks the number of times the word "creation" occurs in the drafts. The blue line marks the number of times the term "design" is included in the drafts. What you see in version 1, 1987, in that draft of Pandas you see that subsequent to that version there is an abrupt decline in the number of times the word "creation" is used, and you can see that in version 2 it's used less than 50 times in Pandas 1987 version 2, whereas in Pandas 1987 version 2 the number of uses of the word "design" rises steeply to somewhere between 250 and 300 times.
Q. I noticed that in the earlier versions where "creation" is still being used quite a bit you do have also fairly significant use of the word "design." Do you draw any conclusions based on that?
A. Yes. The conclusion is that they are being used interchangeably. They're virtually synonymous.
Q. And did you read these drafts?
A. Yes, I looked through the drafts, yes.
Q. And based on reading them is that what's depicted graphically here is consistent with what you observed when you read it?
A. Yes. The visual inspection shows very clearly the substitution of the term "design" for the term "creation."
Q. And was it also the case that in the early drafts the terms were sometimes used interchangeably?
A. Yes.
Q. Matt, could you pull up the next slide? And this is isn't terribly different, but why didn't you describe what this depicts?
A. It's a bit broader search. You'll notice that the word "creation" has an ending, it has an "-is" ending. That is so that the counter will pick up any cognate of that word, creationist or creationism, that both will be counted, and here we're looking for the term "intelligent design" rather than just "design." What this indicates is that you see the same thing in these drafts. In the early drafts you see the use of the term "creationism" and its various cognates. Not very much use at all of the term "intelligent design." In fact, in Creation Biology it's zero times. And then subsequent to the version 1 of Pandas 1987 you see a steep decline in the use of the term "creation" and its various cognates, and you see a very sharp rise in the use of the term "intelligent design" in that second version of Pandas of 1987.
Q. And based on your review do you see the change happening after the Edwards decision?
A. Yes.
Q. Have you seen any other documents that suggest that the foundation for thought and ethics understood that the Edwards decision had consequences for the book it was preparing?
A. Yes, I have.
Q. Matt, could you pull up Exhibit P-350? What is this document?
A. This is a January 30th, 1997 letter written by Mr. Buell to Mr. Arthur Bartlett of Jones & Bartlett Publishers. He is soliciting interest in the Pandas text.
Q. And is that a mainstream publisher?
A. It's a publisher of textbooks. Apparently it publishes a lot of textbooks.
Q. Did Jones & Bartlett end up publishing Pandas?
A. No.
Q. Who did?
A. Houghton Publishing.
Q. And what kind of books does Houghton Publishing publish?
A. It's an agricultural publishing firm. They do not employ science writers, or at that time did not employ science writers or science editors.
Q. Matt, could you go to the second page of the document? And I asked you to highlight in that, the third paragraph, it says here, Our manuscript is entitled Biology and Origins." That was a working title for Pandas as we saw it in the earlier draft?
A. Yes, that is a working title.
Q. And now could you go back to the first page of the document, Matt? And could you illuminate the passages that Dr. Forrest asked you to highlight? And could you read that into the record, Dr. Forrest?
A. "In ruling on the so-called Louisiana Balance Treatment acts, this spring the U.S. Supreme Court may not affirm state mandated teaching of creation, but they will almost certainly let stand the above academic freedom for teachers."
Q. Do you have an understanding of what case Mr. Buell is referring to here?
A. He's referring to the Edwards case.
Q. And if you could go to the next highlighted passage, Matt? Could you read this into the record?
A. "The enclosed projection showing revenues of over 6.5 million in five years are based upon modest expectations for the market, provided the U.S. Supreme Court does not uphold the Louisiana Balanced Treatment acts. If by chance it should uphold it, then you can throw out these projections. The nationwide market would be explosive."
Q. What do you understand Mr. Buell to be conveying there?
MR. MUISE: Objection. Calls for speculation.
MR. ROTHSCHILD: Your Honor, I think Dr. Forrest can interpret this in relation what she has studied about the writing of Pandas and Mr. Buell's stated rationale.
THE COURT: No, I think it speaks for itself. I'll sustain the objection.
Q. Do the drafts of Pandas that you reviewed address the issue of the age of the earth?
A. Yes.
Q. And how do they treat that?
A. They recognize the various positions on the age of the earth among different types of creationists.
Q. And do they say one is right and one is wrong?
A. No. Actually they recognize the young earth view, the old earth view, and although the preference is clearly for the old earth view, they treat the young earth view respectfully as a scientific position which just simply needs more research.
Q. I'd like you to look at one exhibit I think provides an example of that. Can you pull up P-555? This is what you called the summary chapter 1 of the drafts that Mr. Buell was provided by the foundation?
A. Correct.
Q. And Matt, could you turn to page 22 of the document and highlight the first passage? Could you read this into the record, Dr. Forrest?
A. "The standard evolutionary interpretation is that rock strata around the world were laid down over several million years. Thus, they document a time sequence. Organisms that appear as fossils in lower strata lived earlier than those in higher strata."
Q. And is this your understanding of the sort of the standard evolutionary interpretation?
A. It's the standard evolutionary view.
Q. Could you go to the next passage, please, and could you read that into the record, continuing on to the next page?
A. "Among creationists there is considerable skepticism regarding this traditional interpretation. Three major alternative interpretations are found in creationist literature. One, old earth creation. Some creationists accept the same time sequence in the rocks as evolutionists do, but they draw a different conclusion. They propose that at various times throughout the history of the earth an intelligent agent stepped into the course of natural history to create a new type oflivingthing."
Q. Before you go on, Dr. Forrest, at this time as of the writing of this draft were they still using the term "creation" for the central concept of the book?
A. Yes.
Q. But they're referring here to an intelligent agent stepping into the course of natural history to create a new type of living thing?
A. That's correct.
Q. That proposition, is that the same thing that's stated in the writings of intelligent design?
A. Yes.
Q. Why don't you go on --
A. "Number 2, young earth creation. It is possible that the earth is actually quite young, and that the order we see in the rocks is due to something besides the progression of life forms."
Q. And then if you could do just one more passage?
A. One more, sorry. "3, agnostic creationists. Under this label we include scientists who deny that there is any real order in the fossil record at all .
Q. These passages indicate there are various form of creationism?
A. Yes. Here there are three.
Q. And do I understand correctly that this draft is not taking any position on one version being right and the other being wrong and one being inside science and one being out?
A. They are all considered science.
Q. Per the authors of this chapter?
A. Yes.
Q. How does Pandas treat this issue of the age of the earth?
A. In Pandas, and I'm speaking of the 1993 version that I looked at, in Pandas all of these views are subsumed under the grouping of design. They're referred to as design proponents. There is some indication that there's a preference for the old earth view and that the young earth, that other design proponents prefer to condense the history, the age of the earth into thousands of years.
Q. Based on your reading about the intelligent design movement, including these drafts but also more widely, do you find this treatment of the various arguments for the age of the earth to be important?
A. Yes, they're important.
Q. Why?
A. They're important because it indicates that the young earth view is considered a scientific view, which they believe creation science to be, and that they are treating it respectfully and consider it a part of creation science.
Q. I think you said during the qualifications stage of this, of your testimony, that intelligent design proponents in fact have called themselves creationists. Is that right?
A. Yes, they have.
Q. Matt, could you pull up Exhibit 360 and highlight the title and author? Can you read this into the record and tell us what this document is.
A. Yes. This is a title. It's called Challenging Darwin's Myth by Mark Hartwig. That's a slight misspelling. It should be H-A-R-T-W-I-G.
Q. And when was this published?
A. This was in May of 1995.
Q. Who is Mark Hartwig.
A. Mark Hartwig is an intelligent design proponent. He's a long time fellow of the Center of Science and Culture. He also at one time worked for the Foundation for Thought and Ethics.
Q. Have you highlighted certain passages in this article?
A. Yes.
Q. Matt, could you go to the first highlighted passage? Could you read this into the record, please?
A. "Today a new breed of young... --
MR. MUISE: Objection, Your Honor. Hearsay.
THE COURT: Well now, this might be somewhat different. You said, Mr. Rothschild, in your question that the author of this was affiliated at one time with The Foundation for Thought and Ethics, is that correct?
MR. ROTHSCHILD: I didn't say it, but Dr. Forrest did.
THE COURT: Or in answer to a question that was stated. Standing out there and unconnected to either FTE or directly linked to Pandas there's a danger that we're going to get afield here. So there may be another basis for the objection. A proponent of intelligent design and that proponent's beliefs, if not tied up some place, I think could be objectionable.
MR. ROTHSCHILD: Your Honor, I think Dr. Forrest testified, and she'll correct me if I'm wrong, that Mr. Hartwig is familiar with the, affiliated with the Discovery Institute, which is obviously a central player in this movement, and I'll warn you in advance that the next document we're going to look at was written by Paul Nelson, another member of the Discovery Institute, very active, and both of them give a historical summary of certain aspects, some of the history of the intelligent design movement.
I mean, you'll recall Mr. Muise admonished Dr. Forrest for not having looked at the so what document written after her book, and I think she suggested in reaction to her book. These are two people writing as insiders of this Wedge movement and the Discovery Institute about how this came about and who these people are. So I think it's extremely relevant. It's exactly what someone studying the history of the intelligent design movement would look at as a primary source for how this movement was created.
THE COURT: All right. I'll overrule the objection.
MR. ROTHSCHILD: Thank you, Your Honor.
Q. Could you read this passage into the record?
A. "Today a new breed of young evangelical scholars is challenging those Darwinist assumptions. They argue that intelligent design is not only scientific, but is also the most reasonable explanation for the origin of living things, and they are gaining a hearing."
Q. Could you tell us what the term evangelical means?
A. Evangelical refers to a particular position in Christianity in which the adherents believe themselves to have the responsibility of evangelizing, of carrying out what they consider to be the great commission to carry the gospel around the globe.
MR. MUISE: Your Honor, objection. She testified that she is has no expertise on religion, and here she is now expounding on carrying religious affiliation, the dogmas of a particular group.
MR. ROTHSCHILD: Your Honor, I think based on both her education, what she teaches, and what she's written about, while she certainly I don't think would describe herself as a theologian like Jack Haught, these are the kind of terms that people in her field would work with every day and she's certainly worked with as part of her research and writing.
THE COURT: To the extent that the question is answered I didn't find the answer to be objectionable, so we won't strike it. So the objection is overruled as it relates to that answer, that question and that answer.
Q. Dr. Forrest, were you able to conclude by reading the article who the evangelical scholars were that Mr. Hartwig is referring to?
A. He names them.
Q. And we'll go to another passage when that occurs and I won't ask you to do that by memory. Matt, could you go to the next highlighted passage? And could you read this passage into the record?
A. "In March 1992 a landmark symposium took place at Southern Methodist University in Dallas. Phillip Johnson, Steven Meyer, William Dembski, Michael Behe, and other Christian schol ars squared off against several prominent Darwinists. The topic was Darwinism science, or philosophy. The remarkable thing about the symposium was the collegial spirit that prevailed. Creationists and evolutionists met as equals to discuss serious intellectual questions. Not surprisingly, few issues were resolved, but in today's Darwinist climate, where dissent is frequently written off as religious bias, just getting the issues on the table was an accomplishment."
Q. And are the individuals named there, are those the evangelical scholars in the intelligent design movement that Mr. Hartwig was referring to?
A. Yes. These are the evangelical scholars to whom he's referring.
Q. And is he referring to them by another title as well?
A. Christian scholars.
Q. And another one? Is he referring to them as creationists?
A. Oh, yes. Yes.
Q. Who were squared off in debate with what he calls Darwinists or evolutionists?
A. Yes. He notes that they are taking opposing sides.
Q. This is a good a time as any, are these -- the named individuals, are they important people in the intelligent design movement?
A. These are the leaders. These are the people who founded the Wedge Strategy.
Q. That's true of Mr. Johnson, Mr. Meyer, Mr. Dembski , and Mr. Behe?
A. Yes. That's true of all of them.
Q. I think there's one more passage that we have highlighted in there.
A. "Creationists are still far from winning, but they believe things are getting better. As Johnson points out, creationist arguments are growing more sophisticated, while more Darwinists are still responding with cliche. Now it's the creationists who come across as asking the hard questions and demanding fair debate."
Q. Again when he's referring to creationists, he's referring to those individuals?
A. He's talking about those people he named, yes.
Q. I think you also said during the qualifications part of your testimony that intelligent design and Pandas make many of the same arguments as prior creationists, is that right?
A. Yes.
Q. Have you prepared a demonstrative exhibit which addresses that question?
A. Yes, I have.
Q. Matt, could you pull that chart up? And before we get into the substance, can you describe what you're attempting to demonstrate through this exhibit?
A. I made a chart showing the line of development from the young earth scientific creationism of the 1970's through the 1980's to intelligent design creationism in the 1990's to the present.
Q. And each page of this exhibit depicts a different argument or theme?
A. Yes, each page depicts one aspect that you find in creationism through these many decades, three decades.
Q. And underneath the particular argument or theme you have a representative statement on that point?
A. Yes.
Q. And Your Honor will probably be happy to hear, I'm not going to ask Dr. Forrest to read every one of those statements. We're happy to make them available to you as part of the record, but I'm going to ask her lust to talk about the topic and key points within those statements. So why don't you start with this first comment, argument, or theme, relection of naturalism?
A. The first ones comes from 1974, it's again Henry Morris, a well known young earth creationist, and he is relecting naturalism as an explanation. This is typical in creationism to relect naturalistic explanations. Dr. Kenyon in 1986 in his affidavit also relects the, or does not accept the claim that there is a naturalistic origin of life. In 1998 you see Dr. Dembski in a book called Mere Creation relecting naturalism, distinguishing it from creation, and it's clear here that he rejects it for religious reasons because he says that, "As Christians we know naturalism is false. Nature is not sufficient," and this is very common throughout creationism.
Q. And based on your reading of creationist intelligent design work, what's the alternative to the naturalism that they're relecting?
A. There's only one alternative to a natural explanation, and that's a supernatural explanation.
Q. Could you go to the next page of the chart? And Your Honor, after we're through with this exhibit if you'd like to take a lunch break, that would be a good time.
THE COURT: All right.
Q. Evolution's threat to society, is this a common theme?
A. This is also a very common theme. Here you see Mr. Morris in 1974 charging evolution with tending to rob life of meaning and purpose, and I might point out that Phillip Johnson actually goes a little farther and says it does rob life of its meaning and purpose. The second quote is from Duane Frair and Percival Davis, who are the co-authors of Pandas, and this comes from their book 1983, A Case For Creation. They also regard this doctrine of evolution dangerous to society. The third quote comes from the Wedge Strategy document itself and makes the same point, that Darwin portrays human beings not as moral beings but as animals and machines, and what this does is to undermine human moral freedom and moral standards.
Q. And we'll talk more about that document later, but why don't we go to the next slide?
A. The next slide is about abrupt appearance. This is where life forms appear in the history of earth fully formed. In 4 in Henry Morris's book Scientific Creationism he makes that point with the animals appearing suddenly with no transition of, no evidence of earlier life forms. In Dr. Kenyon's affidavit he says the same thing, you see abrupt appearance of animals in complex form, and in Mr. Kenyon and Percival Davis' book Of Pandas and People, 1993, of course there's the definition of intelligent design as the abrupt appearance of fully formed animals that we talked about earlier.
Q. And you called that also special creation?
A. That's also called special creation, right. It requires a special intervention by a supernatural deity into the processes of nature.
Q. Why don't we go to the next slide?
A. This one is about gaps in the fossil record, focusing specifically on the Cambrian explosion. This is a very frequently used target of criticism in evolution theory about the Cambrian fossil. Henry Morris in 1974 pointed out that there's a gap between the one celled microorganisms and the invertebrate phyla of the Cambrian period. I'll repeat that for you. Henry Morris in 1974 points out that there is a very large gap between one celled microorganisms and the mini invertebrate phyla of the Cambrian period, that species appear in the fossil record with no apparent precursors, which he calls no incipient forms leading up to them, and he doesn't anticipate, he forecloses any possibility that further fossil collecting will fill in these gaps. In the next item, this is from Duane Frair and Percival Davis, again from their 1983 book, they're also pointing to what they consider to be gaps in the fossil record, and they attribute these gaps, they explain these gaps, these abrupt things as special activity of God. They believe that that's a reasonable explanation for these gaps in the pre-Cambrian fossil record. The third item of the quote comes from a paper published by Dr. Stephen Meyer in 2004, and he is also making the same criticisms in regard to the record of the Cambrian fossil record. He says that this record implies the absence of clear transitional forms that would connect the Cambrian animals to earlier animals, and likewise he suggests that these gaps are not going to be filled in by simply collecting more fossils, gathering more samples.
Q. Dr. Forrest, based on this morning I'm not going to dare to qualify you as a paleontologist, and we will hear from one later on, but can you tell me whether Henry Morris is a paleontologist?
A. No, he's not a paleontologist. I believe he's a hydraulics engineer.
Q. What about Duane Frair and Percival Davis?
A. No, they're not paleontologists, and neither is Dr. Meyer.
Q. Thank you. We can go to the next slide. Supernatural design and biochemical complexity. Tell us about those connections.
A. Yes, with regard to the supernatural design of biochemical complexities, the general comment in these that unites them is that the complexity of DNA for example simply is not possible through natural processes, that it requires input from outside by a supernatural creator. Henry Morris points this out, he says that the complex systems such as the DNA molecules are not the products of chance. You need a great creator for that. And Dr. Kenyon's 1986 affidavit, you see him pointing out that biomolecular systems require, these complex systems that he's talking about require intelligent design. This has to be put in from the outside, from out, and he's talking here about outside the system of nature. And then a quote from Dr. Behe's book Darwin's Black Box, he also rejects the idea that there is a natural process that could produce biochemical complexity. In fact, if you will look, if you will note he refers to this process as a phantom process, which suggests that he doesn't actually see a natural process that can produce this type of complexity.
Q. So this argument from biochemical complexity to a supernatural creator, that's not new to Mr. Behe?
A. No, it's not new at all, and again I point out that that's the only conceptual alternative to a natural explanation. If you reject the idea that natural processes could do this, you are of course endorsing the supernatural explanation.
Q. And this argument is not new to intelligent design?
A. It's not new at all. It's been there for decades.
Q. Could you go to the next slide, Matt? This is the heading, "Teach the controversy, alternative theories, strengths and weaknesses of evolution." Tell us what this is about.
A. Yes, the intelligent design movement uses very frequently the argument that children should be taught the controversy, that there's a controversy within science itself about the status of evolution, and I really would like to begin with the more recent quotes, because what they mean by teaching the controversy, and these are encapsulated in this quote, both of them, is that children should be taught about intelligent design as an alternative theory to evolution, and that children should be taught the strengths and weaknesses of evolution, and all of these are mentioned in a quote by Dr. Meyer and John Angus Campbell, who is also a fellow for the Center for Science and Culture in March of this year endorsing this position. If you look back in 1973, Duane Gish, who is also another very well known young earth creationist, is essentially saying the same thing. In fact, he says that students should be made aware of the weaknesses of evolution, and he considers teaching them only evolution to be a form of indoctrination. In 1986 you see Dr. Kenyon make the same observation and actually using the term indoctrination. He believes that alternative views, by which he means creation science, should be presented in public school science classes. So this is also a very common theme. It's not new at all. It also includes the argument that students should be taught the evidence against evolution.
Q. So when we hear these arguments in relation to intelligent design, it's right out of the creationists' playbook?
A. Right out of the creationists' playbook. It's not new at all.
MR. ROTHSCHILD: Your Honor, I think we're done with this set of slides, and we can take a break here if that's your preference.
THE COURT: All right. Let's do this at this luncture, and we will be in recess then until 1:30. That should give everybody an ample lunch break. We'll reconvene and pick up this witness's testimony at 1:30 this afternoon.
MR. ROTHSCHILD: Thank you, Your Honor.
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